Citing its own confusion, NLRB changes captive audience meeting rule

By Joy P. Waltemath, J.D.
Citing its own confusion, including that of a Board agent and dicta from a five-member 1998 Board decision where all members got the rule wrong, a divided four-member NLRB panel ruled that captive audience meetings are prohibited within the 24 hours prior to the scheduled mailing of the ballots or prior to the start of a manual-ballot election. As a result, an employer that was told—in error—it could not conduct a captive audience meeting the morning ballots were scheduled to be mailed, and that challenged the adverse election results based on that error as “disenfranchising” voters, could not overturn the election results. Member Miscimarra, dissenting, called the Board’s decision “making the Region’s mistake into a new requirement applicable to all future mail-ballot elections” and saw no good reason to overturn the existing Oregon Washington Telephone rule (Guardsmark, LLC, January 29, 2016).
Confusion over rule. In the challenged mail-ballot election here, ballots were scheduled to be mailed January 28, and the employer wanted to hold a captive-audience meeting that morning. A Board agent told the employer (confusing the Oregon Washington Telephone rule that applied to mail-ballot elections with the Peerless Plywood rule that applied to manual-ballot elections) it could not conduct the captive-audience meeting within 24 hours of mailing. Disputing that, the employer requested clarification via email. On January 26, the Board agent responded, still saying there could be no captive audience meeting within 24 hours of mailing.
Conflicting fax. That same afternoon, however, the Region faxed a letter to the employer citing Oregon Washington Telephone, stating there could be no captive audience meetings “from the time and date the ballots are scheduled to be sent out by the Region until the time and date set for their return.” Because of this discrepancy, the employer sent another email; in a subsequent phone conversation, the Board agent instructed the employer to ignore the fax and not to hold any mass meetings with employees within the 24 hours before the ballots were scheduled to be mailed. At 5:10 p.m., the Board agent sent another email to the employer confirming that the Region’s position was what he had stated during the phone conversation. The employer chose not to hold any mass meetings with employees prior to the mailing of the ballots and, when it lost the election with just over a third of unit members voting, it challenged the results, saying the election should be set aside.
Board precedent. In 1953’s Peerless Plywood Co., the Board prohibited mass captive-audience speeches by parties within the 24-hour period prior to the start of a manual election. The mail-ballot rule at issue here, adopted in 1959’s Oregon Washington Telephone Co., does not begin the mass-meeting prohibition 24 hours before the ballots are scheduled to be mailed—the point that the Board majority thought corresponded most naturally to the Peerless Plywood rule. Instead, Oregon Washington Telephone holds that the prohibition begins when the ballots are scheduled to be mailed, as opposed to 24 hours before. The majority called this “counter-intuitive” and “to avoid perpetuating that confusion,” it overruled Oregon Washington Telephone and aligned the mail-ballot rule more closely with the manual-ballot rule.
Even the Board gets it wrong. Peerless Plywood established a rule to be applied “in all election cases,” prohibiting employers and unions “from making election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election.” While Oregon Washington Telephone set the mass captive-audience meeting prohibition in mail-ballot elections to be when the ballots are scheduled to be mailed, not 24 hours beforehand, the majority pointed to the Board’s own confusion in a 1998 full-Board decision. In San Diego Gas & Electric, all five Board members—despite their awareness of the Oregon Washington Telephone decision—agreed that the prohibition begins 24 hours before the ballots are scheduled to be mailed. This was dicta, but the statements reflected “a shared misreading of Oregon Washington Telephone—and they represent the Board’s most recent articulation (or misarticulation) of the Oregon Washington Telephone rule.”
Given that confusion, the majority reminded that Peerless Plywood, which applies “in all election cases,” prohibits employers and unions “from making election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election.” And although the rule set forth in Oregon Washington Telephone was in effect during the election here, and the Board “did not coherently communicate this rule to the Employer,” the majority did not believe that setting aside the election was required or appropriate.
First, there was no “mass meeting” violation here. Second, though procedural compliance is important, the test for setting aside an election based on regional office conduct is whether the alleged irregularity raised “a reasonable doubt as to the fairness and validity of the election.” Third, the employer’s argument boiled down to an assertion that the Board’s mixed messages on the meeting chilled its right to hold a captive audience meeting at which it would have reminded employees when the ballots would be mailed, and this resulted in low ballot return, “disenfranchising” voters.
Disenfranchisement not a winning argument. But it was undisputed, said the majority, that the employer was free to hold a mass meeting up until 3 p.m. on January 27 to convey its intended message; it had other ways to remind employees of when the ballots would be mailed. The employer’s decision not to hold a mass meeting did not raise any serious questions regarding the election’s validity; nor did the lack of a captive audience meeting “reminder” somehow result in employees being unable to complete their ballots once received, concluded the Board, finding evidence of disenfranchisement “decidedly speculative.”
Dissent. Member Miscimarra, in his usual dissenting posture, found it ironic that the majority “dealt with the Region’s error by making the Region’s mistake into a new requirement applicable to all future mail-ballot elections.” He found no valid reason to change the rule established by Oregon Washington Telephone that, in a mail-ballot election, the prohibition against captive-audience speeches begins when the ballots are scheduled to be mailed.

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